Steven Fearney v. Christina Fearney (2012)

MEMORANDUM OF DECISION

This dissolution of marriage was filed by Steven Fearney (the plaintiff) in Meriden Superior Court on June 17, 2010.   The complaint seeks;  dissolution of the marriage on the grounds of irretrievable breakdown;  joint legal custody of the minor child, primary residence being with her mother Christina Fearney (the defendant);  a liberal visitation schedule;  a post-majority educational support order for the minor child;  and a fair division of property and debts.   The plaintiff is represented by Jennifer A. Sadaka, esq.

The defendant filed a cross-complaint on September 29, 2010 seeking;  dissolution of the marriage on grounds of abandonment, intolerable cruelty, and adultery;  joint legal and physical custody of the minor child;  child support;  alimony;  and a fair distribution of property and debts.   The defendant filed a pro se appearance in this action.

A trial began on February 23, 2012.   Five witnesses testified at the trial;  Laura Zullo, esq. who was appointed Guardian ad Litem for the minor child, the plaintiff and the defendant.   Two of the witnesses testified for the plaintiff as rebuttal witnesses;  Toby Hilton, a family acquaintance, and Geraldine McDermott the plaintiff's mother.   The Attorney General's Office also submitted proposed orders as a result of aid afforded to the defendant.

From their testimony and from all of the exhibits introduced during the trial, the Court finds the following facts.

The parties were intermarried on July 1, 1994 in Enfield, Connecticut.   One child is issue of the marriage, namely Maranda Fearney who was born on July 28, 2002.

The parties acquired a single-family home located at 150 Charles Street in Meriden, CT, in 2001 (the marital residence).   The fair market value of the home is $110,000 and the property is encumbered by a $120,000 mortgage.   The property is owned in both names, the mortgage is in the plaintiff's name, the monthly payment is $1,500, and no mortgage payment has been made to the bank since early 2011.

4 South Broad Street, Meriden, CT is a condominium (condo) which is owned in the plaintiff's name only.   The condo was acquired in 2003.   It was originally owned by the plaintiff and his father.   Sometime later, the father conveyed his interest in that condo to the plaintiff.   The property was originally used as a rental income property for the benefit of the plaintiff and the defendant.   The plaintiff's original share of the condo was acquired with marital funds.   Since he vacated the marital residence in December 2009, the plaintiff has used the condo as his residence.   The condo has a fair market value of $52,000 and is encumbered by a home equity loan of $31,000.   Said loan was taken out by the plaintiff sometime after December 2009 but before July 2010.   Two-thirds of the loan proceeds were used to upgrade the condo and the rest was used to make approximately nine payments toward the mortgage on the marital residence.

There is a time-share in Cancun, Mexico which has a fair market value of roughly $4,000.   This time-share is owned in the defendant's name only and was acquired during the marriage with marital funds.

The plaintiff is now 46 years old and in reasonably good health.   He does suffer from muscle and joint pain as a result of the physical nature of his employment.   The plaintiff underwent shoulder surgery in 2010 and was out of work for a significant amount of time.   The plaintiff is currently employed by Cherry Hill Glass Co. as a glazier and earns approximately $62,000 per year.   He has an annuity with a current value of $52,000 through local 1333 and a pension with the International Painters and Allied Trade Union.   Prior to the marriage (early 1994), the plaintiff was convicted of a felony charge, sentenced to 8 years in prison, and was released after serving 4 1/2 years.   During his incarceration, the parties married.   The defendant visited the plaintiff on a frequent and regular basis, at some point even moving closer to where he was incarcerated.   This offense did not involve the defendant and is not a factor in this court's decision.   The plaintiff claims to have debt in the amount of approximately $10,000.

The defendant is 41 years old, currently unemployed and in poor physical condition.   She worked for Cigna out of the marital home for about 8 years.   This employment ended in 2007 as a result of a mental and physical breakdown.   She received disability pay from Cigna for several months after her illness, then collected 99 weeks of unemployment.   She has recently filed for Social Security Disability and has no income at this time.   The defendant has a myriad of health problems, not limited to;  chronic depression, severe panic attacks, fibromyalgia, glaucoma, carpel tunnel, and swelling joints.   The defendant walks unsteadily, sometimes with a cane, has difficulty concentrating and holding things in her hand, she is significantly overweight and appears at this time to be marginally employable.   The court believing that the defendant could work about 20–25 hours per week, at least for a minimum wage, has assigned her a gross earning capacity of $200 per week.   The Court has used this imputed wage in fashioning its financial orders and property division.   The defendant claims to have debt of around $50,000 which was unspecified but represents the total amount of credit card debt and medical bills.

The plaintiff claims that the marriage broke down on account of the defendant's infidelity.   The defendant claims cruelty, abandonment and adultery.   The court finds that the breakdown began when the defendant lost her job at Cigna in 2007.   The plaintiff became frustrated with the defendant's condition and appearance.   It continued to worsen until the plaintiff became romantically involved with another party around the time he left the marital residence in December 2009.

Both parties contributed to the breakdown but it appears that the plaintiff is at greater fault.   His loss of any affection for the defendant and his new romantic interest were the main causes of the breakdown and this divorce action.   Although the defendant seems not to have lost affection for the plaintiff, this marriage has irretrievably broken down.

When the plaintiff left the marital residence for the condo in December 2009, he made about 9 or 10 mortgage payments, but none have been made for the past 14 months.   The mortgage lender has begun foreclosure proceedings.

Sometime after filing his complaint in this matter, the plaintiff violated the Automatic Orders by removing the defendant's name from his health insurance plan, though he did leave his daughter on that policy.   This violation was especially egregious given the defendant's medical problems.

Maranda is nine years old, in good health, and requires no special needs.   She currently and has always resided with the defendant with whom she appears to be very close.   Maranda does also seem to have a strong affection for the plaintiff but at the present time is reluctant to spend overnights with him.   The court believes that this reluctance is largely due to the child's concern for the well-being of the defendant and the strong bond that they built since the plaintiff vacated the marital residence.   Guardian ad litem Zullo concurred that Maranda is fine with visits to the plaintiff but is reluctant for overnights at this time.   Both parties need to do a better job to make this situation as easy as possible for Maranda.

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The Court finds that it has jurisdiction over this dissolution.   The complaint was properly served.   The matter has been pending for more than ninety days.   One of the parties has resided within Connecticut for at least one year prior to the filing of this action.

The court in entering its orders has considered the provisions of Connecticut General Statutes secs. 46b–40, 46b–56, 46b–62, 46b–81, 46b–82 and all other relevant statutes and evidence.   The court has carefully considered the witnesses' testimony and credibility.

ORDERS

The court dissolves this marriage on this 23rd day of March 2012, on the grounds of irretrievable breakdown.

CUSTODY AND VISITATION

The parties shall have joint legal custody of the minor child, Maranda.   The defendant mother shall have physical custody of the minor child.   For the purposes of these visitation orders, it should be noted that at the present time, the minor child is reluctant to spend overnights with the plaintiff father.

Father shall have visitation with the minor child on a two-week schedule on the following days and times.   Every other weekend on Saturday from 10 a.m. until 8 p.m. and on Sunday from 10 a.m. until 8 p.m.;   every Wednesday from 4 p.m. until 8 p.m.;   on weekends when the father has no visitation, he shall have visits on the Friday before and the Monday after Mother's weekend form 4 p.m. until 8 p.m. except that any Friday visit will end at 9 p.m.

Father shall provide transportation to and from all of his visits.

Thus, as clarification, a two-week schedule beginning on the first Saturday shall be as follows;

Saturday Mother only

Sunday Mother only

Monday Father visit 4–8 p.m.

Tuesday Mother only

Wednesday Father visit 4–8 p.m.

Thursday Mother only

Friday Mother only

Saturday Father visit 10 a.m.–8 p.m.

Sunday Father visit 10 a.m.–8 p.m.

Monday Mother only

Tuesday Mother only

Wednesday Father visits 4–8 p.m.

Thursday Mother only

Friday Father visits 4–9 p.m.

If Maranda does decide to spend overnights and the parties agree, then the overnights shall be on Saturdays and on Wednesdays during the father's regularly scheduled visits as set forth in the two-week visitation schedule above.   If there is a school day after an overnight visit, then the plaintiff shall take the minor child to school on the following day.

Both parties shall use every effort to carry out this schedule so as to make it as easy as possible for the minor child.   Each party shall be punctual.   Each parent shall encourage interaction by the child with the other parent.   Each party may call the minor child once per day during the other's visitation time.

HOLIDAY/VACATION SCHEDULE

Mother's day shall always be with mom.

Father's day shall always be with dad

Easter Sunday shall be spent with father in even years on a Sunday schedule.

Easter Sunday shall be spent with mother in odd years.

Thanksgiving Day shall be spent with father every year from 9 a.m. to 3 p.m.

Christmas Eve shall be spent with father in every year from 4 p.m. through 10 p.m.

Christmas Day shall be spent with mother every year until 4 p.m. every year and with father from 4–8 p.m.

New Year's Eve and Day shall follow the above Christmas Eve and Christmas Day schedule

Assuming that Maranda is able to deal with staying overnight with the plaintiff, he shall be entitled to two non-consecutive weeks of visitation during the months of July and August.   If the overnights are not working out with the minor child, then the plaintiff shall have the same two non-consecutive weeks during those months without the overnight.   If there are not overnight visits, then the plaintiff shall pick up the minor child at 9:30 a.m. and return her by 9:30 p.m. The plaintiff shall notify the defendant of his choice of weeks by May 15th.   If the parties cannot work out a schedule, then the two non-consecutive weeks shall be the first full week of July and the first full week of August.

ANY SUBSTANTIAL CHANGES TO THE ABOVE SCHEDULE MUST BE AGREED TO IN WRITING BY THE PARTIES.

CHILD SUPPORT

For purposes of this order, the Court further finds, and the plaintiff agrees, that he is in arrears of his child support to the defendant in the amount of $2,570.00 and owes an arrearage to the state of Connecticut in the amount of $6,580.00.

Beginning April 2nd 2012, the plaintiff shall pay to the defendant child support in the amount of $190.00 per week until the minor child graduates from high school or reaches the age of 19 years, whichever comes first.   The plaintiff shall further pay the defendant an additional $40.00 per week for 64 weeks except that the 64th payment shall be $50.00.   Said 64 payments will satisfy all arrearages owed by the plaintiff to the defendant.   Said payments shall be secured by an order for immediate wage withholding.

When the arrearage owed by the plaintiff to the defendant is satisfied, the plaintiff shall pay to the state of Connecticut $40.00 per week until the arrearage of $6,580.00 is satisfied.

Unreimbursed medical expenses and qualified day care costs shall be paid 20% by the defendant and 80% plaintiff.

All amounts and percentages are in compliance with the Child Support Guidelines of the State of Connecticut.

The plaintiff shall claim the minor child as a dependent on his State and Federal income tax filings.   If the defendant should become employed and earn more than $25,000 per year, then the parties shall alternate taking the minor child as a dependent on their income tax returns with the plaintiff taking the deduction for the tax due on April 15 of even years.

Agreed upon extracurricular activities shall be shared evenly.

The Court will retain jurisdiction to enter an Educational Support Order in accordance with Connecticut General Statutes sec. 46b–56c.   Given the age of the child and the relative monetary and health situations, the court thinks it prudent to consider this issue in the future.   The court does find that if the family had remained intact, they would more likely than not have provided such support for the minor child.

HEALTH and LIFE INSURANCE

The plaintiff shall provide medical coverage for the minor child through his Union insurance.

The defendant shall remain on her current HUSKY plan.

The plaintiff shall maintain a life insurance policy in the amount of $100,000 for 10 years, naming minor child as a 50% beneficiary (mother as trustee) and the defendant as a 50% beneficiary.   Such insurance shall be obtained or such beneficiary changes shall be made no later than July 1st, 2012.   Proof of compliance with this order shall be provided to the defendant upon written request not to exceed once per year.

REAL ESTATE and TIME SHARE

The marital residence at 150 Charles Street in Meriden, CT, to the extent that the parties may legally do so given the pending foreclosure action, shall immediately be listed for sale with a licensed real estate agent at a mutually agreed upon price.   Any profits, expenses, or losses shall be shared equally by the parties.

The condominium at 4 South Broad St. shall immediately be listed for sale with a mutually agreed licensed real estate agent at a mutually agreed on price. 75% of the net proceeds from such sale shall go to the defendant, and 25% shall go to the plaintiff.   The net proceeds shall be the sale price less all necessary closing costs, less an allowance to the plaintiff of only $30,000 which amount shall be used toward paying off the home-equity loan on said property.   The court is aware that the home-equity loan may be greater than $30,000.

The time-share in Cancun shall be sold immediately and the parties shall divide the proceeds evenly.

The parties will do all acts necessary to carry out these orders.   The Court will retain jurisdiction over these provisions to ensure their purpose and intent is carried out.

ANNUITY AND PENSION

International Painters and Allied Trade Union Pension

When the International Painters and Allied Trade Union Pension reaches maturity, the defendant shall be entitled to receive 25% of the benefit.   Such percentage benefit shall be secured by way of a Qualified Domestic Relations Order (QDRO).

The cost to prepare the QDRO shall be assumed equally by the parties.   The plaintiff shall do all that is necessary to effectuate this order.

The Court shall retain jurisdiction over this pension provision and shall have authority to modify said order if required to comply with the instructions of the plan administrator or to effectuate the purpose and intent of this order.

Local 1333 annuity

The annuity with Union Local 1333 shall be liquidated immediately and the parties shall divide the net proceeds equally.   Net proceeds mean cash available after any penalties paid for early withdrawal.   Each party shall bear the tax consequences of such liquidation as they affect their own income.   Said distribution of said funds shall be made pursuant to a QDRO, if necessary.

The cost to prepare the QDRO shall be borne by the plaintiff.

The Court shall retain jurisdiction over said annuity and shall have the authority to modify said order if required to comply with the instructions of the plan administrator or to effectuate the distribution of the funds as intended.

PERSONAL PROPERTY

There was a list of items of personal property submitted by the plaintiff (see schedule A of proposed orders), which he believes is located at the marital residence.   It appears as though some of these items have been sold by the defendant on various dates during the period from Dec. 2009 until the day of trial and that some of the items were already returned to the plaintiff.   The items sold were to provide funds for the upkeep of the home or for support of the minor child.   Any items that exist and are not addressed in this distribution shall be sold and the parties shall receive an equal share of the proceeds.

The defendant shall make available for pick-up by the plaintiff the following items on or about two weeks from the date of this decision;

Family photos on a disc at defendant's expense.

Lateral pull down

Ridges table saw

Pressure washer

Red tail boa and accessories

The following items shall remain at the marital residence until the defendant vacates the premises, or it is sold or foreclosed on.   When this occurs, the parties shall either sell the following and evenly split the proceeds or divide the following items by written agreement;

Elliptical

Walk behind mower

Weed whacker

Shop Vac/Leaf Blower

Little Giant ladder

Hedge trimmer

Miscellaneous shovels and rakes

DEBT

Each party shall be responsible for the debt as listed on their last filed financial affidavits.

The plaintiff shall be allowed to use the first $30,000 of the proceeds from the sale of 4 South Broad Street (see above) to pay the home equity loan on that property, the remainder of that home equity loan, if any, shall be paid for by the plaintiff only.

ALIMONY

Beginning on the 2nd of April 2012, the plaintiff shall pay alimony to the defendant in the amount of $170 per week for a period of seven (7) years.   Said alimony shall be secured by a contingent wage withholding order.   Further, said alimony shall be non-modifiable as to term only and shall terminate sooner on the first occurrence of any one of the following events;

a) death of either party

b) remarriage by the defendant

c) cohabitation by the defendant

AUTOMOBILES

Each party shall keep the automobiles as listed on their financial affidavits.

Honorable Philip A. Scarpellino

Scarpellino, Philip A., J.